Citation Nr: 9812403
Decision Date: 04/21/98 Archive Date: 05/06/98
DOCKET NO. 97-04 308 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila,
Philippines
THE ISSUES
1. Entitlement to service connection for the cause of the
veteran’s death.
2. Entitlement to accrued benefits.
ATTORNEY FOR THE BOARD
L. McCain Parson, Associate Counsel
INTRODUCTION
The veteran performed recognized service from January 1944 to
February 1945 in a missing status; from February 1944 to
February 1946 in recognized guerrilla service; and from May
1946 to April 1947 in the new Philippine Scouts. The veteran
died in June 1967; and the appellant is the deceased
veteran’s surviving spouse.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from determinations rendered since October
1996 by the Manila, Philippines Regional Office (RO) of the
Department of Veterans Affairs (VA).
As a procedural matter, the record appears to disclose some
confusion as to the status of the claims certified for
appellate review. In this respect, the Board notes that by a
VA letter dated in May 1972, the parent of the deceased
veteran was advised that her claim for Dependency and
Indemnity Compensation (DIC) for the cause of the veteran’s
death, as well as basic eligibility for nonservice-connected
death pension benefits, was denied. A timely administrative
appeal was not submitted. In a statement dated in April
1996, the appellant acknowledged the May 1972 letter; she
made reference to the RO’s previous denial of nonservice-
connected death pension benefits (on the basis that the
veteran did not have the required service for such benefits);
and she contended that she is an eligible claimant for the
purpose of filing a claim for DIC, since she is the surviving
spouse of the deceased veteran who had service as a
recognized guerilla as well as a new Philippine Scout under
Public Law 190. Thereafter, in September 1996, the appellant
submitted a VA Form 21-534 (Application for Dependency and
Indemnity Compensation, Death Pension and Accrued Benefits by
a Surviving Spouse). On the application form, the appellant
responded negatively to the question of whether she was
claiming that the veteran’s death was due to service. Also,
a thorough review of the application form reflects that the
appellant completely crossed-out all parts of the form
pertaining to her net worth, income and expenses. Thus, it
is unclear from a reading of these documents as to whether
the appellant was seeking to file a claim for DIC, and/ or a
claim for nonservice-connected death pension and accrued
benefits.
The RO apparently considered these documents as claims for
nonservice-connected death pension and accrued benefits. The
claims were denied in a VA letter dated October 1996, on the
grounds that the deceased veteran did not have qualifying
service for death pension benefits; that the appellant failed
to file her application for accrued benefits within a year of
the veteran’s death; and that, for these reasons, the
appellant lacked legal entitlement to such benefits under the
law. No mention of a claim for DIC was referenced in the
October 1996 disallowance letter. Notably, however, in a
statement dated November 1996, the appellant specifically
expressed her intent to file an appeal with respect to a
claim for DIC, although noting the October 1996 denial
letter. The Board will liberally construe the November 1996
statement as a timely filed Notice of Disagreement (NOD) with
respect to the issues of entitlement to basic eligibility for
nonservice-connected death pension benefits and entitlement
to accrued benefits; and determines that the November 1996
NOD can be fairly read as encompassing the RO’s failure’s to
adjudicate the claim for DIC. See Garlejo v. Brown, 10 Vet.
App. 229, 233 (1997) (citing Isenhart v. Brown, 7 Vet.
App. 537, 540-41 (1995)).
The RO issued a Statement of the Case (SOC) in December 1997
[sic], which was only relative to the issue of nonservice-
connected death pension benefits. In January 1997, the
appellant filed a VA Form 9 (Substantive Appeal), wherein she
specifically identified only the issues of DIC and accrued
benefits as the issues being appealed. The RO issued a
Supplemental Statement of the Case (SSOC) in June 1997, which
included a discussion relative to the October 1996
disallowance of the claim for accrued benefits. The cover
letter with that SSOC informed the appellant that if she had
already filed a VA Form 9 with respect to the issue on
appeal, a response was optional. Since the appellant had in
fact submitted such a form in January 1997, the Board
determines that that document constitutes a timely filed
substantive appeal as to the issue of accrued benefits,
thereby placing that claim in proper appellate status before
the Board. See, e.g., Archbold v. Brown, 9 Vet. App. 124,
132 (1996) (“although the [appellant] had not received an
SOC after having filed [a timely NOD], he nevertheless filed
correspondence which the Court holds meets the requirements
for a 1-9 Appeal” under 38 C.F.R. § 20.202).
In October 1997, the RO entered a rating decision which
denied entitlement to DIC for the cause of the veteran’s
death and for entitlement to basic eligibility for
Dependent’s Educational Assistance under Chapter 35 of the
United States Code; and which confirmed and continued the
denial of entitlement to basic eligibility for nonservice-
connected death pension benefits, and entitlement to accrued
benefits. A Supplemental Statement of the Case (SSOC), which
was inclusive of all of these claims, was furnished in
October 1997. That notwithstanding, the Board observes that
the appellant has filed correspondence which met the
requirements for a timely NOD and Substantive Appeal with
respect to the issue of entitlement to DIC, in November 1996
and in January 1997, respectively; and, hence, the claim for
DIC for the cause of the veteran’s death is likewise in
proper appellate status before the Board. Id; Garlejo,
supra; see also Smallwood v. Brown, 10 Vet. App. 93, 97
(1997) (citing 38 U.S.C. § 7105 and 38 C.F.R. § 20.202
(“[p]roper completion and filing of a Substantive Appeal are
the last actions the appellant needs to take to perfect an
appeal”)).
However, the Board notes that while the claim for nonservice-
connected death pension benefits was discussed in the
December 1997 [sic] SOC, it was not specifically identified
in the January 1997 VA Form 9, and thus a Substantive Appeal
has not been filed with respect to this claim. As such, the
claim for entitlement to basic eligibility for nonservice-
connected death pension benefits is not in an appellate
status before the Board.
Lastly, while the record indicates that the appellant was
issued an SSOC in October 1997, which included the RO’s
denial of the claim for basic eligibility for Dependent’s
Educational Assistance under Chapter 35, it is also apparent
from the record that the appellant was not provided adequate
written notice of her right to appeal the October 1997 rating
disallowance of this claim by the submission of an NOD within
one year; and, therefore, this matter is referred to the
attention of the RO for appropriate action.
By an October 1997 statement, the appellant withdrew her
request for a hearing before a member of the Board.
Accordingly, the Board’s appellate review will be limited to
the issues listed on the cover page of this decision.
CONTENTIONS OF APPELLANT ON APPEAL
In essence, the appellant contends she is entitled to DIC
benefits for the cause of the veteran’s death; and in
addition, she claims that she is entitled to accrued
benefits.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997 & Supp. 1997), has reviewed
and considered all of the evidence and material of record in
the veteran's claims file. Based on its review of the
relevant evidence in this matter, and for the following
reasons and bases, it is the decision of the Board that the
appellant has not met the initial burden of submitting
evidence sufficient to justify a belief by a fair and
impartial individual that the claim for service connection
for the cause of the veteran’s death is well grounded. It is
also the decision the of the Board that the claim for
entitlement to accrued benefits lacks legal merit and
therefore is denied.
FINDINGS OF FACT
1. The veteran died on June [redacted], 1967.
2. The immediate cause of death was listed as peptic ulcer.
3. The veteran had no service-connected disabilities at the
time of his death.
4. No competent evidence has been submitted to show that the
veteran had a disorder linked to service that caused or
contributed to his cause of death.
5. There is no legal recourse to grant accrued benefits.
CONCLUSIONS OF LAW
1. The appellant’s claim for service connection for the cause
of the veteran’s death is not well grounded. 38 U.S.C.A.
§ 5107(a) (West 1991).
2. The requirements for accrued benefits have not been met.
38 U.S.C.A. §§ 5107, 5121 (West 1991 & Supp. 1997); 38
C.F.R. § 3.1000 (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Service connection for the cause of the veteran’s death.
To establish service connection for the cause of the
veteran’s death, the evidence must show that a disability
incurred in or aggravated by service either caused or
contributed substantially or materially to cause death. The
death of a veteran will be considered as having been due to a
service-connected disability when the evidence establishes
that such disability was either the principal or the
contributory cause of death. The issue involved will be
determined by exercise of sound judgment, without recourse to
speculation and after a careful analysis has been made of all
the facts and circumstances surrounding the death of the
veteran to include autopsy reports. 38 U.S.C.A. § 1310; 38
C.F.R. § 3.312.
Service-connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
service. 38 U.S.C.A. § 1110 (West 1991 & Supp. 1997).
Service connection connotes many factors, but basically it
means that the facts, shown by evidence, establish that a
particular injury or disease resulting in disability was
incurred coincident with service in the Armed Forces.
Determinations as to service connection will be based on
review of the entire evidence of record, with due
consideration to the policy of the VA to administer the law
under a broad and liberal interpretation consistent with the
facts in each individual case. 38 C.F.R. § 3.303(a) (1997).
The threshold question to be addressed in this case is
whether the appellant has presented a well-grounded claim for
service connection for the cause of the veteran’s death. If
she has not presented a well-grounded claim, then the appeal
must fail and there is no duty to assist further in the
development of the claim. 38 U.S.C.A. § 5107(a); Murphy v.
Derwinski, 1 Vet. App. 78 (1992).
Case law provides that although a claim need not be
conclusive to be well-grounded, it must be accompanied by
evidence. A claimant must submit supporting evidence that
justifies a belief by a fair and impartial individual that
the claim is plausible. Dixon v. Derwinski, 3 Vet. App. 261,
262 (1992); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992).
The quality and quantity of the evidence required to meet
this statutory burden of necessity will depend upon the issue
presented by the claim. Where the issue is factual in
nature, e.g., whether an incident or injury occurred in
service, competent lay testimony, including a veteran’s
solitary testimony, may constitute sufficient evidence to
establish a well-grounded claim under 38 U.S.C.A. § 5107(a).
See Cartright v. Derwinski, 2 Vet. App. 24 (1991). However,
where the determinative issue involves medical causation or a
medical diagnosis, competent medical evidence to the effect
that the claim is “plausible” or “possible” is required.
See Murphy at 81. A claimant would not meet this burden
imposed by section 5107(a) merely by presenting lay testimony
because lay persons are not competent to offer medical
opinions. Espiritu v. Derwinski, 2 Vet. App. 492 (1992).
Consequently, lay assertions of medical causation cannot
constitute evidence to render a claim well-grounded under
section 5107(a); if no cognizable evidence is submitted to
support a claim, the claim cannot be well-grounded. Tirpak
at 611. If the claim is not well-grounded, the claimant
cannot invoke the VA’s duty to assist in the development of
the claim. See 38 U.S.C.A. § 5107(a) (West 1991 & Supp.
1997); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992);
Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993).
It has also been determined that a well-grounded claim
requires (1) medical evidence of a current disability, (2)
lay or medical evidence of a disease or injury in service,
and (3) medical evidence of a link between the current
disability and the in-service injury or disease. Caluza v.
Brown, 7 Vet. App. 498, 506 (1995).
The Board notes that the United States Court of Veterans
Appeals (Court) has held that there is some duty to assist a
claimant in the completion of an application for benefits
under 38 U.S.C.A. § 5103(a), depending on the particular
facts in each case. Beausoleil v. Brown, 8 Vet. App. 459
(1996); Robinette v. Brown, 8 Vet. App. 69 (1995). The facts
and circumstances of this case are such that no further
action is warranted.
The death certificate discloses that the veteran died on June
[redacted], 1967. The immediate cause of death was listed as peptic
ulcer. The manner of death was by natural causes.
A pertinent summary of the service medical records, induction
and separation physical examinations, reveal no diagnosis of
or treatment of peptic ulcer disease or gastrointestinal
complaints or defects of the abdominal viscera during
military service. Post-service medical evidence of record
consists of the veteran’s compensation and pension claim
dated in 1962 and a physician’s statement dated in the same
month. The veteran reported that he had been spitting up
blood since 1950 and that his claim of entitlement was not
service-connected. The physician’s statement reflects the
veteran had a bleeding peptic ulcer and was apparently
treated at Aurora Memorial Hospital in March 1960. The
certificate of death reveals that the disease or condition
directly leading to the veteran’s death was peptic ulcer. No
other causes are noted on the certificate of death that was
prepared on June 30, 1967.
The Board is of the opinion that the appellant has not
presented evidence of a well-grounded claim of service
connection for the cause of the veteran’s death. The record
clearly shows that the veteran’s death was attributable to
peptic ulcer. Service medical records are completely void
of complaints, reports, findings, or diagnoses of peptic
ulcer or gastrointestinal complaints. Subsequent to service,
the first clinical indication of a peptic ulcer, as reported
by the veteran, was in 1950 outside the one-year presumption
period. The appellant has submitted no competent evidence
that is probative of a relationship between the peptic ulcer
that caused the veteran’s death and his period of service.
As such, the certificate of death is dispositive, which
reveals that the disease or condition directly leading to
death was peptic ulcer without establishing a nexus to the
veteran’s military service.
While the Board is sympathetic to the appellant’s belief that
the veteran’s peptic ulcer and military service should
entitle her to a survivor’s pension, the evidence, including
the death certificate, as discussed above, does not tend to
show that the peptic ulcer was incurred in or aggravated by
the veteran’s period of military service. The appellant’s
assertions alone do not constitute evidence to render the
claim well-grounded. Caluza at 506. The Board notes the
appellant has not alleged such a nexus to well-ground her
claim.
In summary, the clinical data is silent as to any
relationship between the veteran’s peptic ulcer, his military
service and his death. Simply, the appellant has not met the
burden of submitting evidence sufficient to justify a belief
by a fair and impartial individual that the claim is well-
grounded. In view of the evidence and applicable law
discussed above, the Board must conclude that the appellant’s
claim is not well-grounded. 38 U.S.C.A. § 5107(a); Rabideau
at 144. The claim, therefore, must be denied.
The Board recognizes that the claim for service connection
for the cause of the veteran’s death is being disposed of in
a manner that differs from that used by the RO. The RO
denied the veteran’s claim on the merits, while the Board has
concluded that the claim is not well grounded. However, the
Court has held that “when an RO does not specifically
address the question whether a claim is well grounded but
rather, as here, proceeds to adjudication on the merits,
there is no prejudice to the veteran solely from the omission
of the well grounded analysis.” See Meyer v. Brown, 9
Vet.App. 425, 432 (1996).
II. Accrued Benefits
The Board notes that in the decision of Jones v. West, No.
96-7041 (Fed. Cir. Feb. 11, 1998), reversed sub nom. Jones v.
Brown, 8 Vet. App. 558 (1996), the United States Court of
Appeals for the Federal Circuit (Federal Circuit) recently
concluded that, in order for a surviving spouse to be
entitled to accrued benefits, the veteran must have had a
claim pending at the time of his death for such benefits or
else be entitled under an existing rating or decision. Id.
at 7. The Federal Circuit explained that this conclusion
comported with the decision in Zevalkink v. Brown, 102 F.3d
1236 (Fed. Cir. 1996), which stated that a consequence of the
derivative nature of the surviving spouse’s entitlement to a
veteran’s accrued benefits claim is that, without the veteran
having a claim pending at the time of death, the surviving
spouse has no claim upon which to derive his or her own
application. Where, as in the instant case, the claims file
is absent any evidence that at the time of his death the
veteran had a pending claim for any VA benefit, there is no
legal basis to the appellant’s claim for accrued benefits.
See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
That notwithstanding, the Board further notes that the RO’s
denial of the claim for accrued benefits was predicated on a
finding that the appellant had failed to file her application
for such benefits within one year of the veteran’s death. In
this regard, except as provided for hospitalized competent
veterans and in cases of accrued benefits payable to foreign
beneficiaries, in cases where a veteran’s death occurred on
or after December 1, 1962, periodic monetary benefits (other
than insurance and servicemen’s indemnity) authorized under
laws administered by the VA, to which a payee was entitled at
his death under existing ratings or decisions, or those based
on evidence in the file at the date of death, and due and
unpaid for a period not to exceed two years prior to the last
date of entitlement as provided in 38 C.F.R. § 3.500(g) will
be paid, upon the death of such veteran, to (in the following
prescribed order of precedence) his or her spouse, his or her
children (in equal shares), and his or her dependent parents
(in equal shares) or the surviving parent. 38 U.S.C.A.
§ 5121(a) (West 1991 & Supp. 1997); 38 C.F.R. § 3.1000(a)
(1997).
The veteran in this case died in June 1967. In April 1996,
approximately 29 years after the veteran’s death, the
appellant’s claim for accrued was received by the RO. No
other correspondence was submitted by the appellant within
one year of the veteran’s death which could be construed as
an application for accrued benefits. Since the appellant’s
claim for accrued benefits was received by the RO more than
one year after the veteran’s death, the claim, which is
without legal merit, must be denied. Sabonis, supra.
In a case such as this, where the law and not the evidence is
dispositive, the claim should be denied because of the lack
of legal entitlement under the law. See Cacalda v. Brown, 9
Vet. App. 261, 265 (1996); Sabonis, supra.
ORDER
Entitlement to service connection for the cause of the
veteran’s death is denied.
Entitlement to accrued benefits is denied.
Deborah W. Singleton
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997 & Supp. 1997), a decision of the Board of
Veterans' Appeals granting less than the complete benefit, or
benefits, sought on appeal is appealable to the United States
Court of Veterans Appeals within 120 days from the date of
mailing of notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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